Opinion
No. CV-09-5025939
May 20, 2009
MEMORDANDUM OF DECISION ON MOTION TO DISMISS (#102)
The defendants, Charles Lee, Warden of Cheshire Correctional Institution, Theresa Lantz, Commissioner of Corrections and Robert Farr, Chairman of the Board of Pardons and Paroles, move to dismiss the complaint filed by the plaintiff, an inmate of the State of Connecticut. The defendants argue that the court has no subject matter jurisdiction over the plaintiff's complaint and that the action is duplicative of plaintiff's writ of habeas corpus currently filed in the Rockville Superior Court. For the following reasons, the court grants the motion to dismiss.
The plaintiff's complaint is in two counts, alleging due process and state law violations as a result of his alleged illegal incarceration. He seeks money damages and his immediate release from incarceration.
The basis of the plaintiff's claim of illegal detention, as alleged in his complaint, is as follows. On March 25, 2004 the plaintiff was sentenced to five years incarceration with four years of special parole to follow. On August 8, 2006 he was released on parole on the five-year sentence. While on that release, he was arrested for a new offense. On January 29, 2008, he was sentenced to four years incarceration, which sentence would run concurrently with his prior sentence. The plaintiff's understanding was that his original date for release on special parole would remain in effect, but when that did not occur, he brought the action alleging that he is, and has been, held illegally. (See ¶ 8, 9 of the complaint.)
A brief review of the law on a motion to dismiss is appropriate. "A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, (2007); Pedro v. Miller, 281 Conn. 112, 116 (2007).
The plaintiff has claimed that the defendants failed to file their motion to dismiss within the time frames set out by Practice Book § 10-30. However, since the motion to dismiss alleges lack of subject matter jurisdiction, it is not time barred under P.B. § 10-33.
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 134 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007); Cox v. Aiken, 278 Conn. 204, 211 (2006); Filippi v. Sullivan, 273 Conn. 1, 8 (2005).
In his objection to defendants' motion to dismiss, the plaintiff attached copies of the operative mittimus from each conviction. The language on the January 29, 2008 mittimus indicates that the four-year sentence is to run "concurrent to special parole sentence now serving." While the plaintiff arguably could have been confused by the language on the mittimus, any interpretation that special parole would be served at the same time as another sentence is contrary to the law. Under the statute creating and governing special parole, § 54-125e, special parole does not commence until the expiration of the maximum term of imprisonment. See also State v. Boyd, 272 Conn. 72, 79 (2004) (the meaning of "definite sentence" refers to the period of incarceration that precedes special parole). The plaintiff could not have been released on his original date for special parole, because he received another sentence that merged with the original sentence. Payton v. Albert, 209 Conn. 23, 25 (1988). That merger extended his original date for release on special parole. Therefore, the plaintiff's incarceration is legal and he has failed to state a claim upon which relief can be granted.
The defendants also argue that the motion to dismiss should be granted because the relief that plaintiff is seeking; namely, immediate release; is a remedy solely available in a habeas proceeding. In Baker v. Commissioner of Corrections, 281 Conn. 241, 249 (2007), the Supreme Court noted that the traditional function of the writ of habeas corpus is to secure release from illegal confinement. Immediate release as a remedy is properly sought in plaintiff's habeas action, not in the present action. With respect to plaintiff's claim for money damages, the plaintiff is procedurally barred from seeking such relief. The United States Supreme Court has held that civil actions are not the appropriate vehicles for challenging the validity of outstanding criminal judgments. Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364 (1994). In order to recover money damages, the plaintiff must prove the unlawfulness of his confinement. As previously noted, his confinement is legal. The plaintiff has a pending habeas action that alleges the illegality of his confinement on the basis of the ineffective assistance of his counsel who advised plaintiff as to his purported release date. That action is the proper one within which to address the claims that plaintiff has alleged.
For all the foregoing reasons, the defendants' motion to dismiss is GRANTED.